Indigenous Indaba recommendations

16 August 2017

Chairperson: Mr M Mdakane (ANC)

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Meeting Summary

The Committee received a briefing from the Department of Traditional Affairs on the Traditional and Indigenous Leadership Indaba, and specifically looked at the resolutions of traditional leaders that had emanated from that engagement.

The Committee was informed that the resolutions still had to be processes by the Department of Traditional Affairs and its financial, legislative and other implications still had to be considered. The resolutions cut across various departments and institutions at all levels of government. Most of the resolutions also required provincial departments to come on board. The resolutions covered issues around communal land currently held in trust, spatial planning and land use management, radical economic development and traditional communities, institutional capacity and support, social cohesion and nation building and finally constitutional and legislative mandate.

Recommendations by traditional leaders emanating from the Indaba:

The Independent Remuneration for Public Office Bearers (PoBs) had to be familiar with the core responsibilities of traditional leadership in order to recommend remuneration scales based on their functions rather than on the living standards of their subjects.

A traditional leadership delegation composed of members of Houses must meet National Treasury to make effective inputs on budgetary processes that affected the traditional leadership institution. The Minister of Cooperative Governance and Traditional Affairs had to facilitate a meeting with the Deputy President of SA, the Minister of Finance and the delegation of traditional leaders led by the National House of Traditional Leaders within 30 days.

The National House of Traditional Leaders had to be represented in the Commission in order to make inputs.

Traditional leaders had to be accommodated in pension and medical schemes suitable for PoB. In this regard the Department of Traditional Affairs had to update the National House of Traditional Leaders on the reports of 2008 and 2009 on the determination of remuneration and benefits of traditional leadership within 30 days.

Relating to official palaces for kings, queens, principal traditional leaders and senior traditional leaders the Department of Public Works had to take responsibility for the building of official palaces and the maintenance thereof. The transfer of ownership of official palaces from one leader to another had to be governed in terms of the customary law of the community in question. The Free State model had to be considered.

On the funding model for the institution of Traditional Leadership the Department of Traditional Affairs had to develop such funding model along the lines of Municipal Infrastructure Grant (MIG) allocations.

The Department of Traditional Affairs was asked whether it supported the implementation of the resolutions of traditional leaders. Members observed that some of the resolutions were constitutionally impossible. It seemed as if traditional leaders were clinging to the old Apartheid model of governance. SA after all was a constitutional democracy. There was no governance role for traditional leaders set out in the constitution. What was the position of the Department of Traditional Affairs on the Indaba that had been held? Certain members felt that the resolutions looked like a list of demands of traditional leaders. Some of the demands made were of a monetary nature and members were concerned about where the funds were expected to come from to meet those demands. How many Khoi-San leaders had attended the Indaba? Members observed that there were no inputs on the Khoi-San position. No mention was also made of the Traditional and Khoi-San Leadership Bill. Members emphasised the need for a clearer policy position on what the roles of traditional leaders were. Traditional leaders themselves needed to articulate what they felt their roles should be. A clear policy position on their roles was needed. The concern was that in the absence of such policy, problems could emerge. Members pointed out that the focus of the Indaba should have been on what traditional leadership’s role in SA’s democracy was. Members asked whether traditional leaders were negotiable on the list of demands that they had made. What would traditional leaders do if the list of demands were not met? The Department of Traditional Affairs was asked what informed the programme of traditional leaders and the deadlines that they had set in the resolutions. Members did however observe that no deadlines had been set on demands relating to governance. Members hoped that traditional leaders were aware that once the Khoi-San came on board it would affect them. The Department of Traditional Affairs was also asked whether it had made a distinction of those demands that were doable and of those that were not. Members felt that the Department of Traditional Affairs needed to streamline some of the issues raised. Members asked whether the Department of Traditional Affairs had looked at international best practises of countries like SA on how they had accommodated traditional leaders. Members did feel that the Committee needed to support traditional leaders and that gaps and weaknesses needed addressing. There were members who did not see the resolutions as a list of demands. SA had a past where traditional leaders had been abused. The burning issue had always been about land. It was felt that traditional leaders needed to be guided by the Committee with the help of the Department of Traditional Affairs. It was further felt that traditional leaders had to be educated on the provisions of the constitution as it pertained to them. Issues of demarcation also affected traditional leaders. Members were concerned about certain traditional leaders still taxing their people. The Department of Traditional Affairs was asked why the White Paper on Local Government had not been implemented. The Committee agreed that a follow up indaba was needed to flesh out issues. The Chairperson suggested that the Committee be workshopped by the Department of Traditional Affairs on issues. A clear role for traditional leaders needed to be defined. It was also realised that one way or the other traditional leaders as office bearers had to be remunerated. The DA requested that the Minister of Cooperative Governance and Traditional Affairs, Mr David van Rooyen be summoned before the Committee to speak to the issue of Trillion Capital Holdings. The Committee agreed that a meeting with the Minister could be scheduled.

Meeting report

Introductory comments by Director General
Professor Muzamani Nwaila, Director-General, Department of Traditional Affairs, stated that the Traditional and Indigenous Leadership Indaba had taken place at a time when the term of the National House of Traditional Leaders (NHTL) was coming to an end. The NHTL was supposed to be reconstituted on 16 August 2017 the very day of the present meeting but this was not going to happen.

Prof Nwaila stated that all structures had to work together. The aim was to maintain a balance between the outgoing members and the incoming members of the NHTL. There needed to be dialogue. At the Indaba political parties could also make inputs. At the Indaba the intention was to give traditional leaders sufficient time to air their grievances. There was a total of five days in which traditional leaders had a platform to have their say. The resolutions that had come out of the Indaba needed to be properly considered. Some of the resolutions were quite complex. There were policy related issues, land issues as well as proposed amendments to certain portions of the constitution. The focus areas of the Indaba were:
Land ownership, tenure rights and economic development
Nation building and social cohesion in the context of “Ubuntu”
Institutional capacity and support
Constitutional and legislative mandate
A Commission was dedicated for each of the four focus areas, the result of which was a Declaration and a report of the Indaba. The Declaration was adopted without difficulty. The theme was “Unity in Diversity”.

There was a need to understand why the final constitution when it was finalised put in issues of traditional leadership. The interim constitution retained the powers and functions of traditional leaders. However when the constitution was finalised it was realised that there were unintended consequences. The decision was taken at that time to limit the role of traditional leaders from having a say in political matters. When this happened some traditional leaders had gone to court as they felt that the powers of traditional leaders had been taken away. The court judgment given at the time alluded to the fact that there needed to be a compromise on customary issues.

Briefing by the Department of Co-operative Governance and Traditional Affairs on the Traditional and Indigenous Leadership Indaba
Ms Reshoketswe Mogaledi Chief Director: Office of the Director General, said that the briefing would speak to the resolutions that had emanated from the Indaba that was held from 28 May 2017 to 2 June 2017. The resolutions still had to be processes by the Department of Traditional Affairs and its financial, legislative and other implications still had to be considered. The resolutions cut across various departments and institutions at all levels of government. The core Departments expected to take the resolutions forward were Rural Development and Land Reform, Mineral Resources, Small Business Development, Public Enterprises and lastly Planning, Monitoring and Evaluation and Cooperative Governance. Most of the resolutions also required provincial departments to come on board. She reiterated the focus areas that the Director General Professor Nwaila had spoken to. There was a comprehensive list of resolutions which covered:

Communal land currently held in trust
One of the resolutions was that government should without delay use legal processes at its disposal, in consultation with communities to transfer land and register titles of all communal land that government currently held in trust for traditional communities. On land transfer, it was recommended that a land summit of various land holders and other key stakeholders be held to thrash out an inclusive sharing model to fast track the equitable sharing of the 87% of the land.

Spatial planning and land use management
That a task team be constituted to work on a uniform model for traditional communities across the country based on the Limpopo Model. There was also a need to participate actively on the Mini IMC on SPLUMA.

Radical economic development and traditional communities
The intention was to support the wagon wheel approach. Having dealt with restitution the focus shifted to redistribution as part of the tenure system which was seen as an approach for radical socio-economic development. In addition to adopt the use it or lose it approach that land be accessed for productive use. A one hector one household model was proposed. There needed to be a review of existing contract with Traditional Leadership in favour of beneficiation and radical socio-economic transformation. Everything that had a bearing on the livelihood of communities under Traditional Leadership had to be referred to institutions of traditional leadership. The role of the sector of traditional leadership had to be explicit on radical socio-economic transformation so as to ensure beneficiation and that traditional leadership was central to the economic development of their communities. It was felt that there was a need to establish a resources bank to assist communities. The Royal Bafokeng Model should be emulated. The NHTL and the Department of Traditional Affairs had to develop a partnership model and oversee its implementation. It could be the foundation to a foundation model.

Institutional capacity and support
On having an ideal Traditional Council/Authority it was felt that in the Constitution a change in terms was needed from “Traditional Council” to “Traditional Authority”. It was also felt that the 60/40% formula for the constitution of the Traditional Authority had to be reviewed so that Traditional Leadership could take full control of the environment. Traditional leaders also proposed that a R5m baseline budget be set and that capacity building programmes should be provided for members of the Traditional Authority, royal family and royal council or alternatively that government should provide an adequate budget which would allow the Traditional Authority to appoint adequate personnel. However should government provide staff to the Traditional Authority it should be done in consultation with the Traditional Authority. The aforementioned resolutions should also apply to Kings, Queens Councils and Principal Traditional Leadership Councils. On capacity building for individual traditional leaders a skills audit should be conducted for the institution of traditional leaders including Houses, Traditional Councils and members of traditional authorities, royal councillors, royal families and staff. The Local Government SETA, the National House of Traditional Leaders and the Department of Traditional Leadership should work together to develop training programmes for the Houses. Traditional leaders should also have access to bursaries.

Social cohesion and nation building
The intention was to accelerate the statutory recognition and participation of Traditional Khoi and San leaders in government programmes. To harmonise relationships between the institution of Traditional Leadership, government, communities and other sectors. To also strengthen the participation of traditional leaders in municipal councils and other government structures. The plan was to eliminate cultural practises that violated legislative rights of individuals especially those of women, children and communities.

Constitutional and Legislative Mandate
The idea was to reconstitute the structures of Traditional Leadership and to ensure the establishment of a Ministry for Traditional Affairs. The legislative status of royal families also needed to be reviewed. To furthermore ensure that the Department of Traditional Affairs gave effect to the uniform implementation of the legislative frameworks by provincial governments. Further engagement on policy making processes on the Traditional Courts Bill had to be ensured and that government commissioned the compilation of African Customary Law.

Recommendations by traditional leaders emanating from the Indaba:

The Independent Remuneration for Public Office Bearers (PoBs) had to be familiar with the core responsibilities of traditional leadership in order to recommend remuneration scales based on their functions rather than on the living standards of their subjects.

A traditional leadership delegation composed of members of Houses must meet National Treasury to make effective inputs on budgetary processes that affected the traditional leadership institution. The Minister of Cooperative Governance and Traditional Affairs had to facilitate a meeting with the Deputy President of SA, the Minister of Finance and the delegation of traditional leaders led by the National House of Traditional Leaders within 30 days.

The National House of Traditional Leaders had to be represented in the Commission in order to make inputs.

Traditional leaders had to be accommodated in pension and medical schemes suitable for PoB. In this regard the Department of Traditional Affairs had to update the National House of Traditional Leaders on the reports of 2008 and 2009 on the determination of remuneration and benefits of traditional leadership within 30 days.

Relating to official palaces for kings, queens, principal traditional leaders and senior traditional leaders the Department of Public Works had to take responsibility for the building of official palaces and the maintenance thereof. The transfer of ownership of official palaces from one leader to another had to be governed in terms of the customary law of the community in question. The Free State model had to be considered.

On the funding model for the institution of Traditional Leadership the Department of Traditional Affairs had to develop such funding model along the lines of Municipal Infrastructure Grant (MIG) allocations.

Discussion
Mr K Mileham (DA) asked what had changed since the Committee had received the same presentation six weeks ago.

The Chairperson responded that the previous presentation had been on the declaration of the Indigenous Leadership Indaba. It had been a broad statement of intent.

Mr Mileham asked whether the Department of Traditional Affairs supported the implementation of the resolutions. He pointed out that some of the resolutions were constitutionally impossible. It seemed as if traditional leaders were clinging to the Apartheid model of governance. The reality was that SA was a constitutional democracy. There were three spheres of government ie national, provincial and local. There was no governance role for traditional leaders. No role was set out for traditional leaders in the constitution. What was the position of the Department of Traditional Affairs on the Indaba that was held? What was its feeling on it? He felt that the resolutions looked like a list of demands of traditional leaders. Some of the demands were monetary. Where would the funds come from? He also asked how many Khoi-San leaders had attended the Indaba. If they had attended he did not see any inputs of the Khoi-San position in the briefing. He observed that no mention was also made of the Traditional and Khoi-San Leadership Bill. All he saw was a list of demands from traditional leaders. He emphasised that a much clearer policy position on what the roles of traditional leaders were was needed. In the absence of such a policy problems could emerge.

Professor Nwaila replied that political parties had been invited to the Indaba as there were policy issues that had not been resolved. On whether anything had changed, he said that some work had been done. Engagement with the National House of Traditional Leaders had taken place. However there was not as yet anything worthwhile to report to the Committee. He noted that traditional leaders were campaigning to get elected. It was best to rather wait for the new leadership to be in place. On what the position of the Department of Traditional Affairs was ,he stated that the Department could not have a position. The issues were of a policy nature and fell outside the mandate of the Department. He was of the view that many of the resolutions were not implementable. The Indaba was the opportunity for traditional leaders to engage with politicians. The resolutions were fraught with unconstitutional issues. The Department had developed a programme of action but it was not yet ready to present efforts to the Committee as yet. There were joint efforts with the NHTL. The budget of the Department of Traditional Affairs was very limited and National Treasury still had to be engaged. The Department looked at issues that were low hanging fruit that could be resolved in the short term. But it also identified issues that had to be resolved in the medium to long term. On traditional leaders clinging to their past powers, it would seem that after SA became a democracy traditional leaders had a hangover of the past. Having said this he nevertheless felt that South Africans should not lose the substance of their heritage.

Professor Nwaila stated that reconstitution processes had not taken issues of gender, community etc into consideration. Traditional authority was a policy issue. On whether the resolutions looked like a list of demands, he said that traditional leaders had for the past twenty years asked for a platform for dialogue and the Indaba was such platform where they raised issues. The fact was that the constitution stated that traditional leaders were office bearers and as such should be remunerated. Traditional leaders were not being remunerated. There were around twenty Khoi-San leaders that had attended the Indaba. It was however clear that other traditional leaders had dominated the Khoi-San and as such they were not able to articulate their points. When the Khoi-San got themselves reorganised then they would be recognised. A much clearer political position on issues was needed.

Mr E Mthethwa (ANC) pointed out that already from the background paragraph as contained in the briefing document a problem was that it stated that the focus of the Indaba was amongst other things on “restoring the dignity of the traditional leadership in South Africa”. He would have expected the focus to be on what traditional leadership’s role in SA’s democracy was. He agreed that the resolutions seemed to just be a list of demands from traditional leaders. Were traditional leaders negotiable on these lists of demands? What would traditional leaders do if their demands were not met? He also asked what informed the programme of traditional leaders and the deadlines that they had set in the resolutions. He observed that no deadlines had been set on demands relating to governance. It would seem as though traditional leaders had been selective when it came to setting deadlines. Were traditional leaders aware that the Committee was dealing with the Khoi-San issue and the Traditional and Khoi-San Leadership Bill? He noted that when the Khoi-San came on board they would have an impact on other traditional leaders. He asked whether the Department had from the list of demands made a distinction between what was doable and what was not doable. He felt that the Department needed to streamline some of the issues raised. Everything needed to be in terms of legislation. The Committee needed to look at some of the issues raised in the resolutions. Did the Department look at international best practises on how traditional leaders had been accommodated in countries like SA. He added that the Committee needed further information on the models like that of Limpopo Province that had been referred to in the briefing.

Professor Nwaila agreed that the focus should have been on the role of traditional leaders in SA’s democracy. He also agreed that it was fundamental how traditional leaders themselves saw their role to be. Traditional leaders wished for Chapter 7 and Chapter 12 of the constitution to be amended. The problem was that various aspects of traditional leaders fell within the mandates of different departments. For example the Department of Science and Technology dealt with indigenous knowledge, the Department of Arts and Culture dealt with heritage and language and the Department of Rural Development and Land Reform dealt with land issues. The Department of Traditional Affairs only dealt with leadership issues. He was of the view that matters outlined in Chapter 12 of the constitution should all be brought together under one umbrella. Chapter 7 of the constitution said that municipalities would govern wall to wall. There were issues on what the role of traditional leaders were in this regard. He pointed out that the constitution did state that there had to be legislation which spoke to the role of traditional leaders. Research done on traditional leadership in Africa showed that traditional leaders were good at dispute resolution. He reiterated that traditional leaders still yearned for the powers that they had in the past. There was however still a role for traditional leaders in SA’s democratic state. He explained that the White Paper on Local Government did propose various models. On whether the resolutions of traditional leaders were negotiable, he noted even if they were not negotiable there had to be further engagement. The Indaba was only the first engagement and there would be further engagements down the line. The Department would package things and show what the implications were. How did traditional leaders come up with the resolutions? Traditional leaders had repeated them over and over again over the years. Through engagement a common ground would be found. The issue of self reliance was also important. He felt it important to look at models that worked well. The model of the Royal Bafokeng had been looked at and it was considered one of the best models. It was a very impressive model. Traditional leadership in Ghana did not have the issues that SA was facing. Traditional leaders in Ghana ran their own things. They owned their land but it was held in trust by the Ghanaian government. Various models needed to be considered. The Limpopo model could perhaps also be looked at.

Mr J Dube (ANC) stated that the Committee in principle had a duty to support traditional leaders. Efforts had to be made to correct things where there were gaps and weaknesses. SA had a background of traditional leaders being abused. The burning issue as always was over land. Thus far land had not yet been accessed for traditional leaders. He differed from other members that the resolutions looked like a list of demands. All traditional leaders were trying to do via the resolutions was to express their needs. It was also up to the Committee to guide traditional leaders. The Department needed to come up with programmes. It had to also be borne in mind that the majority of traditional leaders were illiterate and hence needed guidance. Their level of understanding had to be taken into consideration. In most instances traditional leaders tend to express things that were contrary to the constitution. At the next indaba this was an issue that had to be clarified with traditional leaders. The demarcation of land was another sensitive issue. Some land was under the control municipalities whilst other land was under the control of traditional leaders. Of concern was the fact that some traditional leaders still taxed their people. It was an issue that had to be dealt with. The major issue was role clarification of traditional leaders.
Professor Nwaila agreed that traditional leadership issues needed to be addressed. Genuine things needed to be done. A way needed to be found to blend modernity with tradition.

Dr Wilson Makgalancheche, Department of Traditional Affairs stated that the Department was being open to the Committee on the resolutions that had emanated from the Indaba. The questions and comments of members had assisted. When roles of traditional leaders were clarified the dignity of traditional leaders also had to be restored. The Indaba was only the first of others to come as much greater engagement was needed.

Mr Mthethwa asked which countries could be looked at for best international practises on traditional leaders. He stated that another indaba was needed soon in order to deal with issues. Traditional leaders had the Committee’s support but they needed to understand constitutional issues. The taxing of the people was a major concern that had to be addressed.

Professor Nwaila said that countries like Botswana, Zimbabwe and previously mentioned Ghana had been looked at. Some of these countries were facing the same challenges that SA was. He agreed that it was important to have another indaba. Inclusivity was what was needed. He pointed out that it was unconstitutional for traditional leaders to collect levies.

Mileham stated that Prof Nwaila had mentioned the White Paper on Local Government. It was twenty years old. What efforts were being made to upgrade it? He also asked why the White Paper on Local Government had not been implemented over the past twenty years. What was the underlying reason for all the tension?

Professor Nwaila conceded that the White Paper on Local Government dated back to 1998. The spirit of the White Paper on Local Government had however been good. There was a need to identify what was not working on issues like the participation of traditional leaders in municipal councils. The White Paper on Local Government spoke about a model of giving traditional leaders their powers of the past. He felt that traditional leaders needed to define their own roles. The definition should not be in the context of politics. The ceremonial role that was played by traditional leaders was just as important. He also agreed that traditional leaders needed guidance as they redefined themselves. The Traditional and Khoi-San Leadership Bill made no provision for traditional leaders to govern.

The Chairperson suggested that the Committee be “workshopped” by the Department on issues. The Indaba had not been the Department’s but had been an indaba for traditional leaders. It was only the beginning of a long process. Traditional leaders had their own views but the Committee could inform them on what the Committee thought their roles should be. Many of the issues around traditional leaders related to business interests. A clear role for traditional leaders needed to be defined. One way or the other traditional leaders would have to be paid given that they were office bearers. The challenge was how one paid persons whose roles were not well defined. A workshop together with traditional leaders was needed. Traditional leaders who were progressive needed to be identified. The Traditional and Khoi-San Leadership Bill should define roles. The defining of Khoi-San leaders roles’ could be a pilot on how other traditional leaders roles should be defined. The Committee also needed to identify policy gaps.

Mr Mileham suggested that the workshop be scheduled during the next term of Parliament. He asked when the Committee could summon Minister David van Rooyen to speak ovn the Trillion Capital Holdings issue.

The Chairperson said that the Minister could be invited and a meeting could be scheduled.

Professor Nwaila stated that the resolutions could have far reaching implications on the Traditional and Khoi-San Leadership Bill.

The Chairperson asked the Department to incorporate the proposed amendments on the Traditional and Khoi-San Leadership Bill that they had presented to the Committee the day before into the Bill. As a matter of process the proposed amendments needed to be reflected in the Bill itself. Once the public hearings process on the Bill was completed then the Committee would go through the Bill clause by clause.